N.D. farmers appeal ruling on commercial hemp

December 28, 2007

By Matt Bewley Agweek Magazine Two would-be hemp farmers in North Dakota will appeal the Nov. 28 decision by a federal judge in Bismarck, N.D., to throw out their case against the Drug Enforcement Administration, which effectively prevents them from raising commercial hemp. The notice of appeal was filed Dec. 12 in the U.S. Court of Appeals for the 8th Circuit on behalf of farmers David Monson and Wayne Hauge. They were turned away when the judge dismissed their case based in large part on the DEA's contention that the Controlled Substances Act defines hemp as an illegal drug. Monson, a North Dakota state representative from Osnabrock, says that since they brought the case, the burden of proving or disproving issues is not theirs. "It's up to the DEA to refute what we said was fact," he says, adding that an earlier case against Lakota Sioux Alex White Plume on the Pine Ridge Reservation, cited in court by the DEA, was not relevant to theirs. There is no deadline set for deciding whether to hear the appeal, according to a spokesperson with the 8th Circuit U.S. Court of Appeals in St. Louis. Organizations supporting Monson and Hauge are encouraged by the appeal. "We are happy this lawsuit is moving forward with an appeal," says Eric Steenstra, president of Vote Hemp, a nonprofit organization. "We feel that the lower court's decision not only overlooks Congress' original legislative intent, but also fails to stand up for fundamental states rights against overreaching federal regulation." In 1999, North Dakota became the first state to endorse industrial hemp farming. In June, Monson and Hauge sued to force the DEA to issue permits to grow hemp. Judge Daniel Hovland found hemp still is legally classified as a controlled substance. His order states: "The plant the plaintiffs seek to grow is clearly a Schedule I controlled substance under the plain language of the Controlled Substances Act. The language of the statute is unambiguous." Hovland recommended taking the issue up with Congress to change the wording of the law. Steenstra has vowed to do so, saying he intends to "prompt action by Congress on HR 1009, the Industrial Hemp Farming Act of 2007, which would clarify a state's right to grow the crop." Hearings on that bill, though, are not expected until next spring, he says. Meantime, Vote Hemp and the farmers will try to continue their court battle. "The lower court inexplicably ruled that hemp and marijuana are the same, as the DEA has contended," says a Vote Hemp news release, "and thus failed to properly consider the Commerce Clause argument that the plaintiffs raised 'that Congress cannot interfere with North Dakotas state-regulated hemp program. Scientific evidence clearly shows that industrial hemp is genetically distinct from the drug varieties of cannabis and has absolutely no recreational drug effect." Vote Hemp and its supporters are providing financial support for the lawsuit. If it is ultimately successful, U.S. states will be free to implement their own hemp farming laws without fear of federal interference. While the farmers' legal battle continues, the lawsuit did prompt the DEA to respond to the North Dakota State University application for federal permission to grow industrial hemp for research purposes, which has languished for nearly a decade. University officials, however, say it could cost them more than $50,000 to install 10-foot-high fences and meet other DEA requirements such as high-powered lighting. NDSU officials are reviewing the DEA's proposal.